Is Consent to a Battery a Defense?

Sometimes, the victims of crimes of domestic violence claim that they consented to the battery, even when it causes them harm. As a matter of policy, the law has evolved to recognize the public’s strong and overriding interest in prohibiting and preventing acts of domestic violence.

“[T]he offense in question involve[s] a breach of the public peace as well as an invasion of the victim’s physical security, the victim’s consent would not be recognized as a defense.” W. E. Shipley, Consent as Defense to Charge of Criminal Assault and Battery, 58 A.L.R. 3d 662 § 2(a) (1974).

In Florida Statute Section 741.2901(2), the Florida legislature expressed its legislative intent that “domestic violence be treated as a criminal act rather than a private matter.”

As a matter of law, the courts have held that an alleged victim cannot typically freely, knowingly, and voluntarily consent to assault and battery, except in cases of rape. For example, in State v. Conley, 799 So. 2d 400 (Fla. 4th DCA 2001), the court found that consent is not a defense to the criminal charge of battery causing harm.

Under Florida Statute Section 784.03, battery may be committed in one of two ways:

• actually and intentionally touching another person without the consent of that person under § 784.03(1)(a)1; or
• intentionally causing harm to another person under § 784.03(1)(a)2.

The second way of committing a battery does not mention “consent.” Therefore, the courts have found that consent is not typically a defense to battery as defined under that subsection.

In Lyons v. State, 437 So. 2d 711, 712 (Fla. lst DCA 1983), the defendant alleged the trial judge erred in excluding all defense evidence that the victim had consented to the aggravated battery. The court considered whether consent was a valid defense to criminal prosecution of aggravated battery and whether the excluded testimony was relevant to consent. The court first noted it found no cases in Florida directly on this issue, although “[t]he general view is that consent is not a defense to a criminal prosecution for ” Id. The court also noted the following policy consideration: “Whether or not the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in prohibiting and preventing such acts as this.” State v. Fransua, 85 N.M. 173, 510 P.2d 106 (1973). Ultimately, the court found that consent is not a valid defense to criminal aggravated battery and the exclusion of testimony relating to consent was proper.

Read more about the most common defenses for the crimes of battery and aggravated battery in Florida.